|Bush strikes a deal that lets him keep fighting dirty
Sunday September 24, 2006
The Observer [U.K.]
LAST THURSDAY NIGHT, in a development barely reported in Britain, any
hope of bringing detainees at Guantanamo and in the CIA's 'black'
prisons into some kind of acceptable legal framework to protect their
human rights suffered a grievous setback. After weeks of wrangling,
Congressional opposition to Bush administration plans caved in,
leaving the prisoners in a literally hopeless position.
At the heart of this story is a deal, hammered out in intensive talks
between Vice-President Dick Cheney and his Republican critics, led by
Senator John McCain, the former Vietcong prisoner and likely runner in
the next presidential election. According to McCain, it 'gives the
President the tools he needs'. At the same time: 'There is no doubt
that the integrity and letter and spirit of the Geneva Conventions
have been preserved.' The deal does nothing of the kind.
Bush seemed to be heading for disaster in November's Congressional
elections, with detainee trials and torture an issue on which he
looked vulnerable. Now, along with a broader apparent comeback, he has
almost everything he wanted, with Congressional endorsement to boot.
Beneath McCain's rhetoric, the legal black hole dug since 9/11 looks
deeper and darker than ever. The chances of Guantanamo's 450-odd
detainees ever getting justice have been substantially reduced.
The Cheney-McCain deal reverses two historic decisions by the Supreme
Court: the 2004 ruling that gave detainees the right to bring suits in
US federal courts, and last summer's declaration that Bush's military
tribunals, with their classified evidence and testimony obtained
through torture, were unlawful. Here, the court also said that Common
Article 3 of the Geneva Convention, which bans torture and inhuman or
degrading treatment, applied even at Guantanamo and in the CIA gulag.
As a result, the CIA's most 'rigorous' interrogation methods, such as
'light' physical contact and the notorious 'waterboarding', were
prohibited. According to Bush before Thursday's deal, this was a
dangerous impediment to national security.
McCain's pyrrhic victory is that under the deal, lip service to Common
Article 3 remains. The problem is that the only viable method of
making this effective has been removed. To work, laws need
enforcement, and with detainees that means recourse to the courts,
where allegations of maltreatment can be made and tested. The deal not
only blocks new cases, but it will stop the several hundred pending
ones in their tracks. Most detainees will also lose access to their
lawyers and, hence, the principal way in which abuses such as
force-feeding and alleged brutality have been exposed.
Meanwhile, it states that there is only one authority who decides
which interrogation methods breach Common Article 3 - the President.
Thursday's text said he would at least publish the list of permissible
techniques. By Friday, National Security Advisor Stephen Hadley was
saying that some CIA methods would stay secret after all. The
President's commitment to Geneva would have to be taken on trust.
As for the military trials, here, too, the appearance of real
compromise is illusory. The big concession vaunted by McCain and his
allies is the acceptance that defendants will at least be told about
allegations that emanate from classified sources; the tribunals will
not, as Bush initially wanted, consider claims of which suspects
However, the difference with the ordinary rules of legal due process
as practised on both sides of the Atlantic will still be immense.
Confronting 'evidence' from unknown, secret sources, defendants will
not have any opportunity to test it through cross-examination.
Neither does the deal spell out how much defendants will be told. The
record from the existing 'combatant status review tribunals', which
decide if prisoners who have not been charged with any crime should
continue to be detained, suggests that they may learn very little.
After weeks of sound and fury, McCain and his cohorts caved in. Small
wonder Bush sounded jubilant: 'The agreement clears the way to do what
the American people expect us to do: to capture terrorists, to detain
terrorists, to question terrorists and then to try them.' Or as White
House counsel Dan Bartlett put it: 'We proposed a more direct approach
to bringing clarification. This one is more of the scenic route, but
it gets us there.'
· David Rose is author of Guantanamo: America's War on Human Rights, Faber